FLC v NSW Trustee and Guardian [2022] NSWCATAP 385

FLC v NSW Trustee and Guardian [2022] NSWCATAP 385

Leave to appeal was granted and the appeal allowed because the Tribunal erred in principle in dismissing the administrative review application for want of prosecution without applying the relevant principles, including the balance of prejudice and the appellant's prospects of success, and by referring to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
13 December 2022
Procedural Posture
Internal Appeal From Summary Dismissal of an Administrative Review Application for Want of Prosecution / Appeal Panel; Leave to Appeal From Interlocutory Decision
Outcome
Application to adjourn the appeal hearing dismissed; leave to appeal granted; appeal allowed; first instance dismissal and lifting of stay set aside; sale decision stayed; proceedings remitted for re-determination on the papers.
Legal Topics
['administrative Review' 'summary Dismissal for Want of Prosecution' 'interlocutory Appeal' 'leave to Appeal' 'adjournment' 'determination on the Papers' 'stay of Administrative Decision']
['administrative Law' 'civil Procedure'] ['administrative Review' 'summary Dismissal for Want of Prosecution' 'interlocutory Appeal' 'leave to Appeal' 'adjournment' 'determination on the Papers' 'stay of Administrative Decision']

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Procedural Posture

Internal Appeal From Summary Dismissal of an Administrative Review Application for Want of Prosecution / Appeal Panel; Leave to Appeal From Interlocutory Decision

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from the Tribunal's interlocutory decision summarily dismissing the administrative review application for want of prosecution." 'Whether the Tribunal erred in principle by dismissing the administrative review application for want of prosecution without applying the relevant principles, including prejudice and prospects of success.' 'Whether the administrative review application should be remitted for determination on the papers and without further oral hearing.' "Whether the appellant's application to adjourn the appeal hearing on 1 December 2022 should be granted."]

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the Tribunal erred in principle in dismissing the administrative review application for want of prosecution without applying the relevant principles, including the balance of prejudice and the appellant's prospects of success, and by referring to non-compliance with directions without proper regard to the timing and volume of the respondent's s 58 material. The error meant the dismissal could have caused substantial injustice because the administrative review application had not been determined on its merits and it could not be said that the decision under review was unarguably the correct and preferable decision.

Court Disposition

Application to adjourn the appeal hearing dismissed; leave to appeal granted; appeal allowed; first instance dismissal and lifting of stay set aside; sale decision stayed; proceedings remitted for re-determination on the papers.

Orders

  • ["The appellant's application to adjourn the hearing of the appeal on 1 December 2022 was dismissed." 'Leave to appeal is granted.' 'The appeal is allowed.' 'Orders 3 and 4 made by the Tribunal on 22 August 2022 are set aside.' "The decision made by the respondent to sell the property the subject of the appellant's...